Spencer v Assistant Commissioner McCarthy - [2019] QCAT 375

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Spencer v Assistant Commissioner McCarthy & Anor [2019] QCAT 375

PARTIES: MARK GEOFFREY SPENCER

(applicant)

v

ASSISTANT COMMISSIONER MCCARTHY

(first respondent)

CRIME & CORRUPTION COMMISSION

(second respondent)

APPLICATION NO/S:

OCR009-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

31 October 2019

HEARING DATE:

28 October 2019

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:
1.   The decision of the First Respondent that the Applicant be reduced in rank from Sergeant (pay-point 3.6) to Senior Constable (pay-point 2.10) is set aside.

2.   The Applicant be reduced from Sergeant pay-point 3.6 to Sergeant pay-point 3.1 for a period of 2 years effective from 14 December 2017.

3.   From 14 December 2019 the Applicant be reduced from Sergeant pay-point 3.6 to Sergeant pay-point 3.5.

CATCHWORDS:
POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND OFFICIAL MISCONDUCT – QUEENSLAND – where the applicant accessed official information using the Queensland Police Service computer system – where the information accessed was not for an official police purpose – whether the applicant was demoted in rank from Sergeant to Senior Constable – where some particulars of misconduct were set aside – whether the sanction imposed by the Assistant Commissioner should stand – whether a lesser sanction should be imposed.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20

Crime and Corruption Act 2001 (Qld), s 219A

Acreman v Deputy Commissioner Brett Pointing [2019] QCAT 95
O’Brien v Assistant Commissioner Paul Taylor & Anor [2019] QCAT 127
Frazer v Assistant Commissioner Condon [2016] QCAT 271

Crime and Corruption Commission v Acting Deputy Commissioner Barron & Anor [2015] QCAT 96

Aldrich v Ross [2001] 2 Qd R 235

APPEARANCES & REPRESENTATION:

Applicant:

Mr Black of counsel, instructed by Gilshenan & Luton

First respondent:

Mr Fraser of the Queensland Police Service

Second respondent:

Mr Caughlin of counsel, retained by the Crime and Corruption Commission

REASONS FOR DECISION

In December 2017 the Assistant Commissioner made a decision that the applicant had engaged in official misconduct by accessing confidential information in the Queensland Police Service computer system in respect of a number of named individuals. In the particulars provided to the applicant, there were six individuals and in respect of each individual the Assistant Commissioner found that the access was not for official police purposes.
Having found that the Matters were substantiated, the Assistant Commissioner imposed a sanction that the applicant be reduced in rank from Sergeant, pay point 3.6, to Senior Constable pay point 2.10. There was no time limit over which the sanction was to apply meaning that the applicant would have to progress back through the ranks, and pay points in the normal promotional procedures of the QPS.
After the Assistant Commissioner made his decision, the applicant filed an application to review that decision which application was heard on 1 April 2019 with reasons published on 3 July 2019. The Tribunal set aside three of the particulars of Matter 1(a) and found that four of the particulars in Matter 1(a) had been substantiated. Particulars…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] QCAT 375
Decision Date: 31 October 2019

CaseChat Overview and Summary

Spencer v Assistant Commissioner McCarthy is a case concerning the demotion of a police officer in Queensland following allegations of misconduct. The applicant, a Sergeant in the Queensland Police Service (QPS), was demoted to Senior Constable after accessing personal information on the QPS computer system for non-official purposes. The Assistant Commissioner found the applicant guilty of misconduct, and the demotion was upheld by the Police Merit Protection Tribunal. The applicant sought judicial review of the Tribunal's decision, arguing that the sanction was excessive and that a lesser sanction should be imposed.

The legal issues before the court were whether the Tribunal's decision to uphold the demotion was lawful, and if not, what the appropriate sanction should be. The court examined the principles of administrative law and proportionality, considering the severity of the misconduct and the need to maintain public confidence in the police force. The court also compared the applicant's conduct with other cases of similar misconduct to determine if the sanction was commensurate with the breach.

The court found that the Tribunal's decision to uphold the demotion was not unlawful, but the sanction imposed was excessive. The court noted that while the applicant's conduct was serious, it did not involve the disclosure of information to third parties, as seen in other comparable cases. The court considered it appropriate to impose a lesser sanction, and set aside the demotion to Senior Constable. Instead, the court ordered that the applicant be demoted to a lower pay-point within the rank of Sergeant for a period of two years, followed by a further demotion to another pay-point within the same rank.

In summary, the court found that the Assistant Commissioner's decision to demote the applicant was lawful, but the sanction imposed was excessive. The court set aside the demotion to Senior Constable and imposed a lesser sanction, reducing the applicant's pay-point within the rank of Sergeant for a period of two years, followed by a further reduction in pay-point.

Orders

Orders of the court

1. The decision of the First Respondent that the Applicant be reduced in rank from Sergeant (pay-point 3.6) to Senior Constable (pay-point 2.10) is set aside.

2. The Applicant be reduced from Sergeant pay-point 3.6 to Sergeant pay-point 3.1 for a period of 2 years effective from 14 December 2017.

3. From 14 December 2019 the Applicant be reduced from Sergeant pay-point 3.6 to Sergeant pay-point 3.5.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The second respondent also submits that the Tribunal should have regard to purposes of searching Ms MA’s traffic history in so far as it might involve her accepting responsibility for a traffic infringement notice issued to NR. That may well have been the intent of MA, but it is a step too far to suggest that the applicant may have been consciously involved in any activity on the part of MA in providing the false statement to the transport authorities in respect of the infringement. As found in the substantiation decision, the very fact that the applicant accessed personal information of those whom the particulars were substantiated is very serious and not to be regarded lightly.Comparable Decisions Each of the parties have referred me to a number of comparable decisions[4]. The most recent and perhaps relevant is that of O’Brien v Assistant Commissioner Paul Taylor & Anor.[5][4]Frazer v Assistant Commissioner Condon [2016] QCAT 271, [48]; Crime and Corruption Commission vActing Deputy Commissioner Barron & Anor [2015] QCAT 96.[5][2019] QCAT 127. That case involved a Sergeant who accessed the police computer system on 12 separate occasions over a 12 month period. The decision reveals that O’Brien was close friends with an employee at a hotel who would provide her with information from time to time. She would use that information to search QPRIME and would release that information to her friend via text messages. In the course of her reasons for the decision, the learned member said:A police officer with some 7 years’ experience should be aware of professional boundaries that must exist when working with members of the public, particularly when working in a regional area. More importantly, when dealing with a member of the public a police officer should maintain a professional relationship to ensure that his or her judgment necessary to perform police duties to a standard expected by the community, is not clouded by emotional or personal preference. Here, Ms O’Brien as a senior police officer, has allowed her judgment to be clouded in the exercise of her duties when dealing with a member of the public. This is clear from Ms O’Brien’s evidence that she had a ‘professional’ relationship with [NT] and [TT] and that off duty she considered them her friends. The circumstances of the applicant’s relationship with NR falls into a similar category. However, the difference here is that Ms O’Brien disclosed information that was recovered from QPRIME with her ‘friend’ and did so on a number of occasions. In my view, this is a distinguishing feature of this case compared to the applicant’s conduct. Another case of relevance is Acreman v Deputy Commissioner Brett Pointing.[6] The applicant was an Inspector of Police with 35 years’ service at the time of his misconduct. He accessed the QPS computer relating to a complaint that had been made against him, and copied that information and forwarded it, by email, to his own computer. He did not disclose this information to any third parties, but used it for his own purposes. The officer was sanctioned by demotion to a rank of Senior Sergeant for a period of 12 months and then he returned to his former rank. In my view, the applicant’s conduct here falls between the conduct referred to in Acreman and in O’Brien. Acreman was obviously a very senior officer and sought to use the information gained from the QPS computer for his own individual purposes unrelated to policing activities. O’Brien, in the other hand, obtained information and disclosed it to third parties which is clearly an aggravating factor. [6]Ibid.The Applicant’s Submission

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Spencer v Assistant Commissioner McCarthy & Anor [2019] QCAT 375
PARTIES:	MARK GEOFFREY SPENCER
(applicant)
v
ASSISTANT COMMISSIONER MCCARTHY
(first respondent)
CRIME & CORRUPTION COMMISSION
(second respondent)
APPLICATION NO/S:	OCR009-18
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	31 October 2019
HEARING DATE:	28 October 2019
HEARD AT:	Brisbane
DECISION OF:	Member Richard Oliver
ORDERS:	1. The decision of the First Respondent that the Applicant be reduced in rank from Sergeant (pay-point 3.6) to Senior Constable (pay-point 2.10) is set aside. 2. The Applicant be reduced from Sergeant pay-point 3.6 to Sergeant pay-point 3.1 for a period of 2 years effective from 14 December 2017. 3. From 14 December 2019 the Applicant be reduced from Sergeant pay-point 3.6 to Sergeant pay-point 3.5.
CATCHWORDS:	POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND OFFICIAL MISCONDUCT – QUEENSLAND – where the applicant accessed official information using the Queensland Police Service computer system – where the information accessed was not for an official police purpose – whether the applicant was demoted in rank from Sergeant to Senior Constable – where some particulars of misconduct were set aside – whether the sanction imposed by the Assistant Commissioner should stand – whether a lesser sanction should be imposed. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Crime and Corruption Act 2001 (Qld), s 219A Acreman v Deputy Commissioner Brett Pointing [2019] QCAT 95 O’Brien v Assistant Commissioner Paul Taylor & Anor [2019] QCAT 127 Frazer v Assistant Commissioner Condon [2016] QCAT 271 Crime and Corruption Commission v Acting Deputy Commissioner Barron & Anor [2015] QCAT 96 Aldrich v Ross [2001] 2 Qd R 235
APPEARANCES & REPRESENTATION:
Applicant:	Mr Black of counsel, instructed by Gilshenan & Luton
First respondent:	Mr Fraser of the Queensland Police Service
Second respondent:	Mr Caughlin of counsel, retained by the Crime and Corruption Commission